The last few days have certainly been a whirlwind of emotions. On Tuesday night, while trying to catch up on The Killing (seriously, watch it), I cried into my mug of wine watching the Twitter machine spit out the sad news that North Carolina voters passed Amendment 1, amending their state Constitution to include the following language: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”
Then on Wednesday, while I hid in my office trying not to think about how cruel and stupid those NC voters were, I was bombarded with texts and messages telling me that Obama released a statement supporting gay marriage. This time, I cried into my Venti Skinny Vanilla Latte and ridiculous pile of papers that need to find homes.
And last night, after hashing out some of these emotions and various thoughts about the implications of North Carolina’s amendment and Obama’s statement with the absolutely fabulous Women and Gender Studies Department, I finally stopped crying and started thinking about what all of this means.
The Thinking Man sculpture at Musée Rodin in Paris (Photo credit: Wikipedia)
I’m going to break it down for you, FeministLawProf style, but first, I’d be remiss if I didn’t share the words of a good friend and smart lady. To a lot of us, this whole “gay marriage” brouhaha is seems to be bordering on insanity and I think my Manhattan gal-pal hit the nail on the head when she said:
“Sometimes I think I have some sort of deeply ingrained liberalism having been raised in Boston and living most of my adult life in New York city and therefore generally being surrounded by like-minded people that share my outlook on these things. And then I think no… This isn’t about being liberal. It’s being human. It’s about two people loving each other so much that they want to commit their lives to one another. And if they happen to be lucky enough to have found that, they should be able to be together spiritually and legally.”
I’d love to end this blog there. But that wouldn’t do justice to how complex this simple concept of love and committment has become as a result of our system of laws here in the U.S. So get ready, there’s some legal stuff comin’ at ya – in a couple different posts. Today we’re going to cover the first prong of the legal chaos that is the state of marriage, starting with:
The Interaction Between Federal and State Law
Constitutions – There are 51 Constitutions in the United States. But, the Federal Constitution is the supreme law of the land. Why? Because when our founding daddios wrote it, they said so. What this means is that every single state in the United States has to give its citizens at least the rights granted by the Federal Constitution. They can choose to give more rights or play with the rights that the federal Constitution gives, but our Federal Constitution will always have the last word.
Ok. So, we’ve got the Federal Constitution and then every state has their own Constitution, wherein they can outline the rights state citizens have. Some states even give extra rights to their citizens, but every state has to at least give the rights granted by the federal Constitution. But different states have different laws – like in New Hampshire, you can get your driver’s license at 15.5 years, but in Massachusetts you have to wait until you are 16.5. But those 15.5 year olds can drive in to Massachusetts and their drivers’ licenses will still be valid… why?
Full Faith and Credit Clause - Because of the Full Faith and Credit Clause. This is a part of the federal Constitution that says that states have to respect the public acts, records, and proceedings of other states. So Massachusetts has to say ok to those 15.5 year old NH drivers.
So if states have to respect the public acts, records, and proceedings of other states… shouldn’t that mean that say… North Carolina has to respect a same-sex marriage that is valid and legally recognized in Massachusetts? Sigh. This is where things get tricky.
The Defense of Marriage Act (DOMA) – Many years ago, Bill Clinton made a really big mistake. It wasn’t Monica. It was DOMA. In 1996, he signed DOMA into law, effectively destroying the Full Faith and Credit Clause as it applied to marriage. DOMA granted individual states the right to IGNORE any public act, record, or judicial proceeding having to do with marriages from another state. What this means is that a valid marriage license from Massachusetts could be considered invalid in say, North Carolina, under DOMA.
In addition, DOMA also stated that the word “marriage” under basically any federal law or ruling means a “legal union between one man and one woman.”
Finally, DOMA also had a provision that would allow states to amend their state Constitutions to define marriage as between a man and a woman.
Impact of DOMA on Fed and State Law – This is where the wild rumpus starts. Under DOMA, North Carolina has a right to amend its Constitution to define marriage as between a man and a woman. And under DOMA, North Carolina can choose to ignore marriages from other states. So technically, even though it pains me to say this, North Carolina was completely ok in amending their constitution under the DOMA legislation.
But the big question is, Is DOMA Constitutional? Does it work under the Federal Constitution?
What do you think? Does it violate the Full Faith and Credit Clause?
We’ll jump into those questions and what Obama’s statement supporting same-sex marriage, Holder’s announcement to no longer defend DOMA, and society’s changing views of marriage next time… until then, what do you think about DOMA and NC’s decision?